1989CLC2178 (PLP)

Salim Karamally for Appellant. M.L. Shahani for Defendants Nos. 1 and

2. Nazar Hussain Dhon for Defendant No.

3. Dates of hearing: 16th and 24th April, 1989. In this suit for Declaration, Injunction, Specific Performance and, in the alternative, damages in the sum of Rs.15,00,000, the plaintiff has moved an application for injunction restraining the defendants Nos.l and 2 from raising constructions on plot Nos.104, 31st Street, Phase VI, Defence Housing Authority, Karachi (Admeasuring 1000 Sq.Yds) and 22/C, Zulfiqar Street, Phase‑VIII, Defence Housing Authority, Karachi, as also for a further injunction against the Defence Housing Authority, the defendant No.3, to maintain status quo as to transfers in the context of the said residential and commercial plots, respectively.

2. The facts, as pleaded by the plaintiff, concisely, are that the plaintiff and the defendant No.l have been colleagues in the Pakistan Army as also friends of long standing. It was, allegedly, at plaintiff's instance that the defendant No.l applied for a residential plot with the Defence Housing Authority, Karachi, the defendant No.3 herein. Application in this behalf was moved on 4‑7‑1974, ballot was held on 18‑8‑1974, which was attended by the plaintiff and, as a result plot No.104 aforesaid was drawn. Initial payment of Rs.6,100 for such plot was made through a cheque dated 4‑7‑1974 issued by the plaintiffs wife, Mst. Gul Bibi, photo copy of receipt whereof, original of which is said to be in possession of the plaintiff, has been filed. To make up for the balance cost of the said plot together with membership fees of Rs.100. a cheque of Rs.1500 was, allegedly, issued and paid from plaintiff's funds. Photostat copy of relevant receipt dated 31‑7‑1974 has been filed and the original is claimed to be in possession of the plaintiff. A Transfer Affidavit alleged to have been affirmed by the defendant No.l in favour of the plaintiff in respect of the said plot bearing No.104 has been brought on record and shown to have been attested on 31‑1‑1977 at Karachi. Original is claimed to be in the possession of the plaintiff. Though undated, photostat copy of a corresponding undertaking is also filed with similar claim regarding the original. The plaintiff, allegedly, made a further payment in respect of the plot aforesaid through a cheque from his funds dated 5‑10‑1977 in the sum of Rs.10,325 in the context of which, as well, the plaintiff has produced copy of letter dated 5‑10‑1977 from the defendant No.l. According to the plaintiff, transfer could not be completed in his favour as the defendant No.l was on roving duties and could not be personally available for recording due transfer, which was a requirement. Elsewhere in these proceedings plaintiff asserts that subsequent to the Transfer Affidavit and undertaking correspondence between the Defence Housing Authority and the Defendant No.l, as reflected in Annexures `M` and `N` to the plaint, was conducted c/o the plaintiff. However, the plaintiff, allegedly, came to know on 1‑10‑1988 that the defendant No.l, with a view to defraud him, collusively and surreptitiously transferred the referred plot to the defendant No.2, who is claimed to have had full knowledge that the plaintiff was the real owner of the plot in question. It is further the case of the plaintiff that, as a consequence of the above transfer, the defendant No.] was also transferred commercial plot No.22‑C, as above referred, on the basis of an application made in May, 1976, payment of Rs.3,100, in which context was again made by the defendant No.l, in similar Benami manner through a draft obtained from the plaintiff. In the foregoing circumstances, legal notices dated 8‑10‑1988 and 9‑10‑1988 were addressed by the plaintiff to the defendants Nos.l and 2, to which only the defendant No.l rendered a somewhat evasive reply dated 27‑10‑1988, whereafter the above suit was filed on 12‑1‑1989.

3. On the above application having been submitted alongwith the suit, an ad interim order of restraint was passed by this Court in favour of the plaintiff on 15‑1‑1989. Since then the defendant No.2 submitted his counter‑ affidavit and written statement on 20‑2‑1989. In the written statement, which is relied upon in his counter‑affidavit, the defendant No.2 pleads that the suit is barred by time, that he purchased the plot in question after due and proper enquiry, for consideration and in good faith, that the Transfer Affidavit and the alleged undertaking "are apparently contrary to the signatures of the defendant No.l", that the defendant No.l on 12‑5‑1988. cleared the dues on the plot to the extent of over Rs.38,000, and that he the defendant No.2 did not receive any legal notice from the plaintiff. As regards the plaintiffs allegation in para 13 of the Plaint that the defendant No.2 "had knowledge of the Benami ownership of the said property vesting in the plaintiff" that defendant has failed to deny such fact specifically in para 2 of his Written Statement, which deals with such question. In the counter affidavit similar pleas are repeated and balance of convenience is said to lie in favour of the defendant No.2, as he wishes to construct upon the plot to house his family therein. Receipt dated 12‑5‑1988, which is appended with the counter affidavit of the defendant No.2, shows payment of Rs.30,000 by way of Development Charges but surcharge of Rs.8,443 is also shown to have been paid therein indicating that, apparently, no other payment subsequent to those claimed by the plaintiff was made over all these years. On my enquiry from Mr. M.L.Shahani whether any public notice was issued before the defendant No.2 obtained transfer that learned counsel, who represents both the defendants, stated that such notice was not issued. It cannot, therefore, in the absence of categorical assertion of want of notice of the alleged real ownership and invitation of public objections be, prima facie, said that the defendant No.2 is a bona fide purchaser without notice of plaintiff's projected title. Significantly, also no details of payment of consideration either have been disclosed by the defendant No.2. Thus the element of consideration also is not free from doubt.

4. Intriguingly, the defendant No.l submitted his counter‑affidavit subsequent not only to the counter‑affidavit of the defendant No.2 but also the Re‑joinder of the plaintiff,. Further such counter‑affidavit, filed on 14‑3‑1989, is curiously, very short and pithy. The defendant No.l pleads that he is himself the real owner of the property, that no Benami transaction in respect of either of the plots is involved and that he paid the consideration from his own resources, details of which would be disclosed by him in his written statement, corroborated by documentary evidence. He has denied the execution of the transfer affidavit and the undertaking (Annexures `K' and `L' to the plaint) and says that on the dates of purchase of the stamp paper and the attestation of the affidavit he was neither in the Punjab nor at Karachi, the places of relevance, but was in Quetta. He denies having authorised the plaintiff to deal with the defendant Housing Authority on his behalf at any time. He, allegedly, saved the plot from cancellation prior to his payment of the dues on 12‑5‑1988. He has repudiated Annexure `N` and `O` to the plaint but has neither denied Annexure `M` nor Annexure `P` in the first of which he ‑is addressed by the defendant No.3 Authority care of the plaintiff and in the second care of one Abdul Saleem. He has also pleaded the bar of limitation. Lastly, he has denied all friendly relations with the plaintiff.

5. In the counter‑affidavit of the defendant No.3 filed on '0‑3‑1989, that defendant, in oblivion of Annexure `M` above, has stated that it has not dealt with the plaintiff and has transferred plot No.104 in favour of the defendant No.2 on receipt of due documents.

6. In his Affidavit in Rejoinder, in reply to the counter‑affidavit of the defendant No.l, submitted on 19‑4‑1989, plaintiff has referred to his PA (Pakistan Army)No.5431, as having been utilized by the Defendant No.l, in the context of Annexures `N‑ and `O` and has said that he paid the entire balance dues of Rs.10,325 etc. as on and up to 5‑10‑1977, that Annexures `K` and `L` to the plaint were signed by the Defendant No.l, and that defendant No.l has failed to explain as to how the plaintiff was in possession of all the relevant originals.

7. Learned Counsel for the plaintiff on the question of the defence of limitation has referred to Nelson's Law of Injunctions (IInd Edition) pages 56, 57 and 107, and Row`s Law of Injunction (VI Edition) page 298.

8. It has, repeatedly, been held that there is a difference between the concepts of laches and limitation. A plea of laches is to be discouraged unless somebody has been damnified by it. Nor is it easy to lay down any hard and fast rule as to what shall be regarded as laches for that would depend upon the circumstances of each case and may not necessarily be dependent, entirely, on the period of time that has elapsed. On principle, it can be stated that it has never 1 been the policy of Courts to push people into litigation until they are really sure that a genuine complaint has emerged. Delay, therefore, is to be calculated from the time when the wrong is commuted until the time when legal aid is invoked. Relying on these principles, it is contended that till the time that the plaintiff discovered the, allegedly, clandestine transfer by the Defendant No.l to the Defendant No.2, there was no occasion or cause for the plaintiff to come to Court as no cloud on the clear title of the plaintiff was cast and, therefore, the suit neither suffers from laches nor does any bar as to limitation operate against the plaintiff. It would thus seem, on the basis of record, such as it is for the present, that the suit does not suffer from limitation nor does the claim of laches appear to be strong enough, on the present record, to warrant denial of interim relief.

9. Question of prima facie case, therefore, for grant or refusal of interim relief can now be considered. It is significant that the plaintiff alleges that he is in possession of the crucial original documents, that he made all the payments, except the last one made on 12‑5‑1989, that his name was utilized in the context of correspondence and that, finally, he holds transfer documents from the Defendant No.l in his own name, the last of which, of course, are repudiated. 'Even so, an arguable case in favour of the plaintiff has emerged, shifting the burden on the defendant No.l to show and explain these crucial matters which he has failed so far to do. As regards the defendant No.2, since, as observed above, the defendant does not seem to have proceeded with due care and caution nor has be claimed want of notice of the rights of the plaintiff, it cannot at the stage be said that he is a bona fide purchaser for value without notice.

10. In the context of balance of convenience, the rule is that it, normally, lies in favour of continuation of the state of things which has subsisted over a period and such situation being what it was before purported transfer by the Defendant No.l in favour of Defendant No.2, it would appear that such balance would lie in maintaining status quo and precluding any further transfers or constructions so as to alter the shape of properties. Coming to the question of irreparable loss, it would appear that if the properties which may belong to anyone of the parties were allowed to be constructed upon or dealt with in the way of disposition, loss of an irreparable nature would ensue in that such loss may not be capable of compensation in terms of money. Mr. M. L. Shahani, emphasized that the plaintiff had, alternatively, claimed damages in sum of Rs.15,00,000 (Rupees fifteen lacs) and since such damages translated the alleged loss in terms of money, loss to the plaintiff, if any, could not be termed to be irreparable and, this being so, and order of injunction, as prayed, could not be granted, for all ingredients of prima facie case, balance of convenience and irreparable loss must be satisfied before an order of injunction in terms of Rules 1 and 2 of Order XXXIX, C.P.C. can be issued. This contention is not tenable because an alternative relief, in a suit for specific performance, by way of damages, is claimed only with a view to meet a situation where the Court may refuse specific performance in its discretion, specific performance being a discretionary relief. Thus, unless an alternative, though only an approximate, claim of damages is raised, the plaintiff, on refusal of discretion, may be left with no remedy. To meet such situations, such an alternative prayer is added and this practice in pleadings cannot, therefore, be treated to be equivalent of claim of damages by a plaintiff, in lieu of specific performance, on foregoing the latter. The only extent to which the contrary rule has been applied, through judicial authority, is where the plaintiff, before coming to Court claims only compensation as a substitute for specific performance. Such a plaintiff, even if he sues for specific performance, subsequently, may be denied an order of injunction on the plea of absence of irreparable loss. This element, obviously, i$ not present in this case and such contention, therefore, fails.

11. In the foregoing view of the matter, all the parties to this action shall maintain status quo but m the manner as prayed. This disposes of C.MA.309/88. AA./A‑619/K Order accordingly.